Indian Tribunal Holds that Make Available Clause Concerning Fees for Technical Services may be Incorporated by MFN Clause of the India-Dutch Tax Treaty

In a recently published decision, the Ahmedabad Tax Appellate Tribunal held that the most favored nation (MFN) clause of the 1988 India-Dutch tax treaty incorporates the make available clause of the 1989 India-U.S. tax treaty concerning the definition of fees for technical services (FTS).

The case involved a Netherlands BV (NBV) providing basic refinery package services in India. NBV claimed 50% of the fees received for the services as fees for commercial services, which according to NBV ar…